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Googlestroika: Five Years Later Karl T NORTH CAROLINA JOURNAL OF LAW & TECHNOLOGY Volume 16 | Issue 3 Article 5 3-1-2015 Googlestroika: Five Years Later Karl T. Muth Follow this and additional works at: http://scholarship.law.unc.edu/ncjolt Part of the Law Commons Recommended Citation Karl T. Muth, Googlestroika: Five Years Later, 16 N.C. J.L. & Tech. 487 (2015). Available at: http://scholarship.law.unc.edu/ncjolt/vol16/iss3/5 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Journal of Law & Technology by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact [email protected]. NORTH CAROLINA JOURNAL OF LAW & TECHNOLOGY VOLUME 16, ISSUE 3: MARCH 2015 GOOGLESTROIKA: FIVE YEARS LATER Karl T. Muth* This article re-examines and revises observations made in the author’s 2009 article, Googlestroika: Privatizing Privacy.1 Specifically, it looks to the contractual obligations and practical considerations that define how users interact not only with Google, but also with social network websites and other online service providers. Consideration is given to how an individual leaves a social network, or terminates “membership” and technical matters, such as the implications of so-called private modes in web browsers. This Article is a review of where the market in privacy stands today and discusses some, but by no means all, changes in law, policy, litigation, regulation, and contract arrangements since the first article’s publication in 2009. Its focus, as with Googlestroika, is to reconcile the user experience of Internet services with the terms of use and contractual provisions that govern the interactions between consumer and provider. * SEI Fellow, The University of Chicago Booth School of Business; Lecturer in Economics, Public Policy, and Statistics, Northwestern University. This Article is a sequel to, and revision of, the comments offered by the same author five years earlier in Googlestroika: Privatizing Privacy, 47 DUQ. L. REV. 337 (2009). The views in this Article belong only to the author and should not be presumed to be held by the institutions, firms, or persons with which he is affiliated. Thanks to Elizabeth M. Schutte, one of my dearest friends; without her thoughts and criticisms years ago, Googlestroika would not have been strong enough to support or deserve a sequel. Thanks to employees at certain firms mentioned here who allowed me to interview them. Finally, thanks to Professor Randy Picker of the University of Chicago School of Law; if I had not taken his wonderful course years ago, I doubt I would have noticed or appreciated the complexity and importance of issues in this area of law. Raymond Wang and Amy Taylor offered comments on pertinent issues and earlier drafts. 1 Karl T. Muth, Googlestroika: Privatizing Privacy, 47 DUQ. L. REV. 337 (2009) [hereinafter Googlestroika 1]. 487 488 N.C. J.L. & TECH. [VOL. 16: 487 TABLE OF CONTENTS I. INTRODUCTION—WORKING BACKWARD FROM WURIE ................................................................................ 490 II. PROVIDER CONTRACTS THEN AND NOW: AN EVOLUTION ........................................................................ 495 A. Google, Gmail, YouTube, Google+, and the Mountain View Approach ............................................ 496 B. Bing, Xbox, OneDrive, Azure, and the Redmond Approach ...................................................................... 501 C. Facebook and the Menlo Park Approach .................... 502 D. Apple, iTunes, and the Cupertino Approach ................ 505 E. Twitter and the Market Street Approach ..................... 507 III. JOINING THE NETWORK: USER AGREEMENTS & INITIAL ASSENTS ............................................................... 508 A. Google .......................................................................... 508 B. Bing .............................................................................. 509 C. Facebook ...................................................................... 510 D. Apple ............................................................................ 511 E. Twitter .......................................................................... 512 IV. LEAVE NO TRACE? GOING OFF THE GRID ...................... 512 A. Leaving Google ............................................................ 512 1. Gmail as a Distinguishable or Separate Service ... 512 2. YouTube as a Separate Set of Agreements ............. 513 3. Incognito Browsing Within Chrome: An Exception? ............................................................. 514 B. Leaving Bing ................................................................ 515 1. Azure as a Separate Set of Services ....................... 516 2. Skype as a Quasi-Social Service ............................ 516 3. InPrivate Browsing within Internet Explorer: An Exception? ........................................................ 517 C. Leaving Facebook ........................................................ 519 1. Facebook’s Download Feature and Its Purpose ... 519 2. Facebook’s Two-Week Waiting Period ................. 520 3. Private Browsing and Facebook: An Exception? .. 521 D. Leaving Apple .............................................................. 521 E. Leaving Twitter ............................................................ 522 MAR. 2015] Googlestroika 489 V. HYPOTHETICAL LITIGATION & OPERATIVE ANALOGIES ........................................................................ 523 VI. A COMPROMISE? CONSIDERING NEW CONTRACT IDEAS FOR SOCIAL NETWORKS ........................................ 524 490 N.C. J.L. & TECH. [VOL. 16: 487 I. INTRODUCTION—WORKING BACKWARD FROM WURIE Five years ago, this Article’s predecessor, Googlestroika: Privatizing Privacy, was published. It discussed Google’s business model of gathering information about people and using this information, selling this information to advertisers, and otherwise finding ways to turn this information into money. The article focused on the fact that many users see Facebook, Google, and other services as “free,” rather than recognizing that their use of these services is a barter arrangement in which they trade their privacy for services. The opacity of this bargain—and the opaque market in privacy-related transactions in general—leads to a series of problems.2 There is no doubt that terms of service agreements and end user agreements have changed in the past five years. Consumer behaviors have also changed since 2009: more people have so-called smartphones and more people store enormous amounts of information in the cloud, on free services like Gmail,3 or in free social networking repositories like Facebook and Twitter. In addition, consumers are more savvy about bartering their privacy for services, something not discussed five years ago—as CNET put it in a recent article, “[W]eb surfers are used to dealing with the privacy versus profit trade-off . .”4 Finally, the contract terms themselves have changed—not only at Google, but also at Bing, Facebook, Twitter, and elsewhere. The heterogeneity of approaches to contractual questions is worthy of study—who really has what 2 See, e.g., Andrew Schwartz, Consumer Contract Exchanges and the Problem of Adhesion, 28 YALE J. ON REG. 313, 347 n.200 (2011) (calling the Google Terms of Service a contract of adhesion and citing Googlestroika 1); Victoria Schwartz, Disclosing Corporate Disclosure Policies, 40 FLA. ST. U. L. REV. 487, 502 (2013) (noting market-based privacy dilemmas and citing Googlestroika 1); see generally Nathan Newman, The Costs of Lost Privacy: Consumer Harm and Rising Economic Inequality in the Age of Google, 40 WM. MITCHELL L. REV. 849 (2014) (asserting that consumers are unaware of the “harm from the extractions of personal data” done by companies such as Google). 3 Google has, over the years, alternatively branded its email service “gmail” and “Gmail”—for the sake of consistency, I refer to all vintages of Gmail with a capitalized “G” herein. 4 Elinor Mills, Deleting Your Facebook Account (FAQ), CNET, (May 21, 2010, 4:00 AM), http://www.cnet.com/how-to/deleting-your-facebook-account-faq/. MAR. 2015] Googlestroika 491 type of license to those photos of your son’s birthday party that you uploaded to Twitter and Facebook or sent to grandma via Gmail? The Court’s consideration of the mobile phone’s role in modern life in United States v. Wurie5 recognizes a new relationship between our digital lives and our real lives, one that can be both symbiotic and independent.6 Wurie acknowledges the sweeping changes in American consumer attitudes and behavior from 2009 to 2014. Five to ten years ago, phones did not contain encyclopedic records of day-to-day life. Today, each phone is a ledger, a reservoir of data containing the most recent epoch of a person’s being.7 Phones may contain banking records, GPS information, photographs, histories of websites visited, histories of text message interactions, and thousands of other pieces of data.8 Chief Justice John G. Roberts, Jr., distinguished cell phones from other things that might be found on a person in the Court’s unanimous decision in Riley v. California,9 stating, “the fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.”10 Further, Tom Goldstein commented that the United States v. Wurie decision was “a sweeping endorsement of digital
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